Mexican Federal Labour Law ("FLL") does not expressly provide for specific categories of employment status. However, it is possible to make a practical distinction between the categories of workers mentioned below.

• Trustworthy employees: Those with functions of management, supervision, inspection, and auditing of a general nature (white-collar employees).
• Union workers: Individuals rendering services under a collective bargaining agreement (blue-collar employees).
• Permanent employees: Indivivuduals rendering services for an indefinite term.
• Temporary employees: Individuals rendering services for a fixed term or for a specific job or task.
• Management or executive employees: High-level employees who are entitled to at least the minimum statutory benefits afforded by the FLL (including payment of overtime) and to be registered with the Mexican Social Security, regardless of their position and job description. These employees often receive greater benefits than those granted by the FLL, which is acceptable, provided that all other employees receive at least the minimum statutory benefits.

On the other hand, contractors/consultants should not be treated as employees as they perform services in exchange for a fee but are not subordinated to an employer. These individuals are (i) hired through services agreements; (ii) offer services to the public in general; (iii) have their own establishment and personnel and; (iv) their income derives from different sources.

Yes. The following types of contracts are provided for in FLL:

• For an indefinite term: This is the most common type of agreement executed between employees and employers.
• Fixed-term contracts: This type of agreement may be executed only if the activities call for a fixed term or if the employee is hired to temporarily substitute another employee.
• Contracts subject to a probation period. The probation period can be of up to 30 days for employees in general positions and up to a maximum of 180 days for management, administration, specialized technical or professional positions. During these periods, the employee is be entitled to enjoy the minimum mandatory benefits provided by FLL.
• Contracts subject to initial training: This period can be of up to 90 days for employees in general positions and up to 180 days for management, administration, specialized technical or professional positions. During these periods, the employee is be entitled to enjoy the minimum mandatory benefits provided by FLL.

Once hiring periods elapse, they cannot be extended. Should employees satisfactorily pass the probation or initial training period, they would need to be hired under an agreement for an indefinite period of time 

Under Mexico´s Law, employment contracts must be in writing and must include at least the following:

• Employer’s and employee’s name, nationality, gender, civil status, Tax ID and address.
• Indication of whether employment agreement is executed for a specific job or term, or for an indefinite term.
• A description of the services to be provided.
• The place where the work is to be performed.
• The length of the work shift.
• Salary amount, day and place of payment;
• Confirmation that the employee will undergo training pursuant to the procedures and programs established by the employer.
• Designation of beneficiaries for salaries and accrued benefits derived from employee's death.
• Other terms and conditions of employment, such as days off and holidays, agreed upon by the employer and employee.

Yes. On a pro-rata basis to actual time worked.

No. One of the main elements of an employment relationship is that the services must be provided personally.

If the transfer includes the assets of the company, then an automatic transfer of employees occurs and the acquiring entity becomes a substitute employer. The new employer must honor the terms and conditions of employment originally agreed with the former employer, and no obligation to pay severance arises. Under this scenario, the employee has no saying nor right to refuse to be transferred as the employment relationship is not terminated but rather continued with a new employer.

However, if there is no transfer of assets, then employees may object to being transferred and a constructive termination may be triggered and therefore be entitled to receive a full severance payment.

Not as long as terms and conditions of employment are fully honored. If the change of control implies damage in detriment to the employee's terms and conditions of employment, then a constructive dismissal may be triggered that will entitle the employee to full statutory severance.

Terms and conditions of employment cannot be modified unilaterally to the detriment of the employee's terms and conditions of employment.

Unilateral changes that are detrimental to employees will trigger constructive termination and will entitle employees to payment of full severance.

Change of terms and conditions in detriment cannot be made even with the express consent of the employee as terms and conditions of employment cannot be waived in any manner whatsoever. Any agreement, on the contrary, will be deemed null and void.

No.

Unlike other countries where employment-at-will is the general rule, an employer in Mexico may dismiss an employee without liability only if there is a justified ground for the dismissal. If the employee is laid off without just-cause, then he/she would be entitled to receive a severance package

Yes. A wrongfully terminated employee is entitled to receive a full severance package as follows:

• A lump-sum payment of three months’ salary. This remedy is calculated based on the integrated salary of the employee, including premiums, bonuses, and commissions, among others.
• Twenty days per each year of services rendered based on integrated salary as referred to above.
• A seniority premium equivalent to twelve days' salary for each year of rendered services; however, for calculation purposes the daily salary is capped to two times the minimum daily wage in Mexico.
• Any statutory or contractual accrued benefits in arrears must be paid up to the termination date.

FLL does not regulate whistleblowing nor provide specific protection to whistleblowers. However, whistleblowing is not considered a justified ground for dismissal. This means that an employee terminated for "blowing the whistle" will be entitled to receive full severance.

It is common practice for employers to adopt internal whistleblowing policies which provide that there will be no retaliation against whistleblowers.

Yes

Employers are charged with the following data privacy obligations.

• Issue a “Privacy Notice” to each employee. A Privacy Notice is a physical or electronic document generated by the data controller (employer), made available to the data subject (employee) prior to the processing of personal data.

A full privacy notice must at least include: (i) identity and domicile of the data controller; (ii) purposes of the data processing; (iii) means to limit the use or disclosure of data; (iv) rights of Access, Rectification, Cancellation and Objection of personal data (“ARCO rights”); (v) data transfers to be made to affiliates, subsidiaries or related parties; (vi) procedure to notify changes to the privacy notice; and (vii) specific mention that sensitive personal data is being processed

• Appointment of a Person or Department of Personal Data in order to manage personal data.
• Establish security measures in order to protect personal data from damage, loss, alteration, destruction or unauthorized use.

Breach of the aforementioned obligations may result in any of the following sanctions:

• Written order to comply with privacy rights.
• Fine ranging from USD$500.00 to USD$1’600,000.00.
• For repeated occurrences, an additional fine could be imposed also ranging from USD$500.00 to USD$1’600,000.00.
• Three months to three years imprisonment may be imposed on any person authorized to process personal data who, for-profit, causes a security breach affecting the databases under his or her custody.
• Six months to five years imprisonment may be imposed on any person who, with the aim of achieving unlawful profit, processes Personal Data deceitfully, taking advantage of an error of the data subject or a person authorized to transmit such data.

Anti-discrimination provisions are included at a Constitutional level and are also regulated in the Federal Law to Prevent and Eliminate Discrimination and in the FLL and the Federal Criminal Code.

In general terms, anti-discrimination regulations provide that no individual may be discriminated against on the grounds of race, social origin, nationality, gender, age, disability, religion, immigration status, health, sexual orientation, religion, political opinion or social status.

Our employment legislation requires employers to ‘treat employees with due consideration and avoid mistreatment by word or conduct’, as well as to avoid ‘denying employment (to an applicant) based on any of the protected categories.

Both employers and employees can be held liable for discrimination and harassment in the workplace.

Employer’s liability could consist of payment of legal severance if a constructive termination attributable to the employer is triggered, whereas discriminatory actions from employees are considered just-cause for termination for cause.

It is also provided in the Criminal Federal Code that the employer’s representatives and co-workers could also be criminally liable if determined by the corresponding courts.

Employees are entitled to enjoy at least 6 vacation days after the first year of services, thereafter, the number of days increases by two working days for each following year until it reaches twelve vacation days. Thereafter, the vacation period increases by two days every five years of service.

In relation to parental leave, women have the right to six weeks leave prior to the birth of a child and six weeks following the birth of a child, in case of adoption, the women are entitled to a leave of six weeks. On the other hand, male employees are entitled to five business days of paid paternity leave when their spouse gives birth or they adopted a child.

During the last 12 months, another paternal leave was enacted. This leave is to take care of a child diagnosed with cancer in which either the mother or father can be granted between one and up to twenty-eight days, the employer does not have the obligation to make a payment.

As a general rule, restrictive covenants are not enforceable in Mexico, as the Mexican Constitution states that no one can be prevented from performing any activity or from providing any kind of services, provided that they are legal.

However, the Supreme Court recently held that restrictive covenants may be enforceable provided that (i) they apply for a determined period; (ii) limited to a specific territory and (iii) compensation is paid in exchange.

Law is silent regarding reasonable restrictions as to geography, duration, scope and consideration. This becomes entirely a matter of agreement.

No. They cannot be terminated for refusing to sign a restrictive covenant. An employee terminated based on this ground is entitled to receive full statutory severance.

Law is silent regarding amount consideration. This becomes entirely a matter of agreement between the employer and the employee.

Yes. All employers must register their employees at the Mexican Institute of Social Security (IMSS for its acronym in Spanish) in order to contribute to the mandatory federal social security program. Employers and employees must contribute to such an institution. Employers must withhold the employee’s contributions.

Enrollment to IMSS affords employees with a retirement plan, among other benefits such as major medical.

FLL entitles all employees rendering services in Mexico with the following minimum statutory benefits that cannot be waived in any manner whatsoever:

• A year-end bonus is equivalent to at least fifteen days' wages (Christmas Bonus) and payable prior to December 20 of each year.
• An annual vacation period, the length of which depends on the employee's seniority.
• A vacation premium of 25% of the salary payable to the employee during the vacation period and;
• Mandatory paid holidays. - Enrollment in Social Security.

Furthermore, all employees are entitled to share the employer’s profit at a rate of 10% of the pre-tax profits of the employer. Profit share is not considered a benefit but rather an employer obligation that must be paid only when profits are generated.

The retirement age in Mexico is 65 based on social security provisions, however, it is not mandatory to retire at such age, as the employee may legally continue rendering services.

If the employee reaches the retirement age but he/she does not wish to retire, the company cannot force the employee into retiring.

No.

Terms and conditions of employment cannot be terminated or change in detriment under any circumstance as employment-related rights cannot be waived in any manner whatsoever. Doing so will entitle the employee to full statutory severance.

No – employees cannot be legally required to get any kind of vaccines. This applies to the COVID-19 vaccine or influenza or any other type of vaccine and applies in the current pandemic scenario and even prior to it.

The employer can certainly issue a recommendation to get it or even encourage that they do by outlining any known benefits, but employees cannot be forced to get it and it cannot be made a condition of employment nor employees can be terminated for refusing to get the vaccine.

Such a requirement would be a violation of the individual’s constitutional right to self-determination and protection of their physical integrity.

In addition, denying employees access to their normal place of work on the basis that they refuse to be vaccinated is also likely to breach these constitutional rights. Further, mandating vaccines as a condition of access to an employee’s normal place of work would be problematic from a privacy perspective because this would mean that consent to the vaccine was not freely given by the employee.

Employees working in essential businesses or those that are open under the epidemiologic traffic light system must return to work and the employer must observe certain sanitary measures to keep employees safe, including having a sanitary protocol in place.

This means that employees of businesses that are allowed to open are legally bound to return to their activities and can be forced to come back to work unless any of these employees are considered amongst vulnerable populations. Given that employees are legally bound to return to work, any employee with more than three unjustified absences or that does not comply with the sanitary measures in place may be subject to disciplinary actions which could lead to termination for cause.

Vulnerable employees cannot be required to return to the workplace during a red, orange or yellow classification. These employees can be required to work from home if their activities allow it. Vulnerable employees are considered those aged over 60 or with a diagnosis of high blood pressure, diabetes, heart or lung disease, immunosuppressive illnesses such as HIV or cancer, and pregnant/lactating women regardless of whether their work activity is considered essential or not